Full Judgment Text
REPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NO. 7434 OF 2008
(Arising out of SLP (C) No.17161 of 2006)
Lalitaben Jayantilal Popat … Appellant
Versus
Pragnaben Jamnadas Kataria & Ors. … Respondents
J U D G M E N T
S.B. Sinha, J.
1. Leave granted.
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2. This appeal is directed against the judgment and order dated
26.6.2006 passed in FA No.110 of 2000 and FA No.124 of 2000 by the
High Court of Gujarat at Ahmedabad dismissing appeals filed against a
common judgment and order dated 23.2.2000 passed by the learned Civil
Judge (SD) Rajkot allowing the Civil Miscellaneous Application No.25 of
1996 and dismissing the Civil Miscellaneous Application 26 of 2006.
3. One Purshottam Manji Thakrar was the owner of the property. He
purported to have executed a Will on or about 15.4.1978 in favour of the
respondents. He left behind his two sons (Jamnadas and Jayantilal) and two
daughters (Kasturben and Lalita – appellants herein).
Purshottam Manji Thakrar died on 30.11.1984. His wife had
predeceased him. Jamnadas died leaving behind his wife, Jasumati
(Respondent No.3) and two daughters, Pragna and Bina (Respondent Nos.1
and 2 respectively). Jayantilal died issueless. He was a divorcee. He
purported to have executed two Wills; one on 31.1.1995 propounded by the
appellant and the other on 18.6.1995 propounded by respondents.
Kasturben died on 19.12.1995.
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4. Respondents filed an application for grant of probate of the Will
dated 18.6.1995. On the other hand, appellant filed an application for grant
of probate in respect of the Will dated 31.1.1995.
The learned District Judge granted probate in respect of the Will
dated 18.6.1995 propounded by the respondents and dismissed the
application for grant of probate in respect of the Will dated 31.1.1995
executed by Jayantilal.
5. Two appeals were preferred thereagainst. By reason of the impugned
judgment, the High Court dismissed the said appeals.
Although all the three aforesaid Wills, i.e., one dated 15.4.1978
executed by Purshottam Manji Thakrar in favour of the respondents, as also
two Wills executed by Jayantilal dated 31.1.1995 and 18.6.1995 were in
question, this Court by an order dated 2.11.2006, issued a limited notice
directing :
“In view of the decision of this Court in Janki
Narayan Bhoir v. Narayan Namdeo Kadam, (2003
(2) SCC 91), issue notice only on the question as
to whether the Will dated 18.6.1995 was legally
proved.”
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6. Mr. Jay Savla, learned counsel appearing on behalf of appellant,
would submit that a Will, having regard to the provisions contained in
Section 63(c) of the Indian Succession Act, is required to be attested by two
or more witnesses and furthermore, although in terms of Section 68 of the
Indian Evidence Act it is permissible to examine one witness, who must
testify to prove valid execution and attestation of the Will, i.e., both the
witnesses have signed in the presence of the testator or the testator has
either signed in presence of one or acknowledged his signature before the
other. It was contended that as in this case, the said legal requirements had
not been complied with, the Will in question cannot be said to have been
proved. Strong reliance in this behalf has been placed on Janki Narayan
Bhoir (supra) and Benga Behera & Anr. v. Braja Kishore Nanda & Ors.
[2007 (7) SCALE 228].
It was urged that a large number of suspicious circumstances
surrounding the execution of the Will by the testator having not been
explained by respondent, the Will cannot be said to have been legally
proved. These, according to the learned counsel, are:
“Respondent Nos.1 and 2 had filed suit for
rd
partition claiming 1/3 share on the basis of the
Will of grand father Shri Parshottam Kataria dated
th
15 April, 1978 and in the alternative under
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th
succession claiming 1/9 share against deceased
Jayantilal Kataria being Suit No.119/1989.
Testator had opposed the suit amongst other
grounds and in the written statement of the
testator, it was averred that Parshottam Kataria had
th
in fact made last Will dated 19 November, 1983.
th
In the reply dated 10 January, 2006, to Public
Notice, no mention of Will.
st
In the said proceedings, on 1 January, 1996, in
the application for deletion of deceased,
Respondents categorically averred that such
Jayantilal Kataria had not executed any Will.
th
Further an application dated 4 March, 1996 was
filed for impleadment in the proceeding filed by
deceased Testator against the tenant for eviction, it
was reiterated that Jayantilal Kataria had not left
any Will.
In the examination-in-chief, in the Petition for
th
probate under Section 276 filed on 8 July, 1996,
no explanation about the statement made in the
earlier proceedings to the effect that Testator had
died intestate.
By the alleged Will, the entire property has been
bequeathed to Respondents who are not Class-I
legal heirs to the exclusion of Petitioner, Smt.
Lalitaben Popat.
Deceased is resident of Rajkot whereas
Respondents were residing at Mumbai.
Petitioner being younger sister was nursing the
deceased and the relationship was very cordial.”
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It was contended that the District Judge as also the High Court having
failed and/or neglected to deal therewith, the impugned judgment cannot be
sustained. Strong reliance in this behalf has been placed on Ram Piari v.
Bhagwant & Ors. [(1990) 1 SCR 813]; Smt. Guro v. Atma Singh & Ors.
[(1992) 2 SCR 30]; Rambai Padmakar Patil (dead) v. Rukminibai Vishnu
Vekhande & Ors. [(2003) 8 SCC 537]; B. Venkatamjni v. Ayodhya Ram
Singh & Ors. [2006 (11) SCALE 148].
7. Mr. Adarsh Priyadarshi, learned counsel appearing on behalf of
respondent, on the other hand, would contend:
(a) Law does not require that a Will must be proved by two attesting
witnesses.
(b) In ascertaining the genuineness of the Will, the only requirement
being that the Court must satisfy its conscience and as in this case all
the courts have arrived at a concurrent finding of fact, this Court
should not exercise its discretionary jurisdiction under Article 136 of
the Constitution of India.
(c) Section 63(c) of the Indian Succession Act does not envisage direct
proof of execution of the Will.
8. The law in regard to proof of a valid Will is now well settled.
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It has to be proved not only by proving the signature of the executor
but it should be found to be free from any suspicious circumstances.
Section 63(c) of the Indian Succession Act reads as under :
“ Section 63.—Execution of unprivileged Wills
— Every testator, not being a soldier employed in
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an expedition or engaged in actual warfare, [or
an airman so employed or engaged,] or a mariner
at sea, shall execute his Will according to the
following rules :-
(a) and (b) …
(c) The Will shall be attested by two or more
witnesses, each of whom has seen the testator sign
or affix his mark to the Will or has seen some
other person sign the Will, in the presence and by
the direction of the testator, or has received from
the testator a personal acknowledgement of his
signature or mark, or of the signature of such other
person; and each of the witnesses shall sign the
Will in the presence of the testator, but it shall not
be necessary that more than one witness be present
at the same time, and no particular form of
attestation shall be necessary.”
9. Indisputably, the said provision is mandatory in nature. A Will is
required to be attested by two or more witnesses.
Section 68 of the Evidence Act provides that the propounder must
prove execution and attestation of the Will by examining at least one of the
attesting witnesses.
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What is meant by the word ‘attestation’ is defined in Section 3 of the
Transfer of Property Act which reads as under :
Section 3.—Interpretation-clause— In this Act,
unless there is something repugnant in the subject
or context,-
XXX XXX XXX
"attested", in relation to an instrument, means and
shall be deemed always to have meant attested by
two or more witnesses each of whom has seen the
executant sign or affix his mark to the instrument,
or has seen some other person sign the instrument
in the presence and by the direction of the
executant, or has received from the executant a
personal acknowledgment of his signature or
mark, or of the signature of such other person, and
each of whom has signed the instrument in the
presence of the executant; but it shall not be
necessary that more than one of such witnesses
shall have been present at the same time, and no
particular form of attestation shall be necessary.”
10. Indisputably, the Will in question was marked as Exhibit 44. It bears
the signature of one Mavaji Viraji in Gujrati language and one Ranjit Singh
in English. Respondents, in order to prove execution of the Will, examined
Ranjit Singh alone. He was working in the agricultural Department of the
State at Gondal in the District of Rajkot. On the date of execution of the
Will, he was at his place of work. The testator was a resident of Jetpur. The
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Will admittedly was executed at Jetpur. Attestation of the Will admittedly
had taken place only at Jetpur.
Ranjit Singh, in his deposition stated :
“I know Janyatilal Purshottam Kataria. I also
know Purshottam Manaji Kataria and Jamandas
Purshottam Kataria. Jamnadas and Jayantilal are
sons of Purshottam Majaji. I have relation with
whole family for the last many years. I used to go
to ask for the health, if any member is sick.
The said Will mark 42/1 is the original Will
executed by Jayantilal Purshottam Kataria.
Original Will is executed upon the stamp paper
worth of Rs.10/-. The name of Jayantilal
Purshotam is upon the stamp paper as purchaser. I
am shown the signature of Jayantilal Purshottam
in the Will. I identify that this signature is of
Jayantilal Purshottam himself. This signature is
put in my presence, the signature of two witnesses
are also there in the Will dated 18.5.95. From
those one signature is of Mavnjibhai Virjibhai and
other is of myself i.e. Ranjit Singh. I produced the
said Will which is produced at exhibit-44.
Jayantilal had called me at the time of Will which
is of movable and immoveable properties. At the
time of the execution of this Will, Jayantibhai was
conscious and well position. He executed this
Will by his wish, not under the pressure of any.”
In cross-examination, he stated:
“I do Government service in Gondal. I do my
service in Agriculture department. I am at Gondal
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for the last 4 years. On 9.5.1996, I was at Gondal.
It is not true that my signature is obtained in
Gondal. When I went to Jetpur, I have signed in
the Will at Jetpur. On that day I went Jetpur after
putting my report for leave. I was called at Jetpur.
First I was informed therefore I went prior to the
week of the execution of Will. I was informed. I
directly went to Jayantibhai. It is true that this
original Will was already prepared in that Will I
signed. Jayantibhai had also signed in my
presence, when I signed. At that time we two and
one old man was there to whom I know by face.
Rest I do not know.”
11. The Will was in Gujarati. It was typed one. Who scribed the Will is
not known. Who typed the same is also not known. Signature of Ranjit
Singh is at Serial No.2 of the column of the witnesses. Paragraph 8 of the
Will makes an interesting reading which is reproduced hereinbelow :
“At Jetpur my trusted Vaisnav friend Mavaji
Virjabhai whose support I have received in my
religious life, I have trusted upon him. Therefore,
his signature as witness is done and he has to see
that my heirs may receive my property according
to Will.”
This Will or ‘vasihat nama’ is my last Will and I
have not executed any Will or ‘vasihat nama’
except this. If it is, it is to be considered as
cancelled. In this way if my life may complete,
this Will be considered the last Will.
I have executed this Will or vasihat nama with my
pleasure, keeping the life permanent, good health,
after realize and thinking, according to the voice
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of my soul and I have signed before two witnesses.
For that I have signed under this and both
witnesses have put their own signature.”
12. A perusal of the Will shows that the said Mavajibhai Virajibhai was
made an executor of the Will. The Will, however, has been produced from
the custody of Ranjit Singh. How he came in custody of Will has not been
explained. The recital that no other Will had been executed appears to have
been made as if the executor was not sure thereabout. The Will is supposed
to have been executed in presence of both the witnesses. A declaration is
made by the testator that he had signed before both the witnesses and only
before him both the witnesses had put their signatures.
Ranjit Singh does not say so. He was alone with the testator.
According to him, the testator had already put his signature. Jayantilal, the
testator of the said Will had signed in his presence. It is, thus, evident that
at that point of time Mavajibhai Virajibhai had not put his signature on the
Will as an attesting witness. Still his name appears at Serial No.1. An old
man only according to the said witness was present when the testator
executed the Will. Who was that old man is not known. Certainly he is not
Mavajibhai Virajibhai.
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It has, therefore, not been proved that both the attesting witnesses
either attested the Will in presence of each other or the testator had
acknowledged his signature in presence of the other witnesses.
13. The learned counsel, however, has drawn our attention to the
statement made in the counter affidavit that the said Mavajibhai Virajibhai
had expired on 2.5.1996. It was, however, very fairly stated that the said
fact had not been brought on record before the courts below. We, therefore,
are not in a position to accept the said contention raised before us for the
first time.
14. Mr. Priyadarshi has drawn our attention to a decision of this Court in
Joyce Primrose Prestor (Mrs) (Nee Vas) v. Vera Marie Vas (Ms) & Ors.
[(1996) 9 SCC 324]. In that case, the Will was a ‘Holograph Will’. The
writings of the testatrix was proved.
The question which arose for consideration therein before this Court
was as to whether the Will was surrounded by suspicious circumstances.
This Court noticed a passage from the ‘Laws of Will in India and
Pakistan, by Mantha Ramamurthi, at pages 81-82, which reads as under :
“If a will appears on the face of it to have been
duly executed and attested in accordance with the
requirements of the Act, the maxim "omni a proe
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sumuntur rite esse acta," applies, unless it is
clearly proved by the attesting witnesses that the
Will is not in fact duly executed. The Court of
Probate has long been accustomed to give great
weight to the presumption of due execution arising
from the regularity ex facie of the testamentary
paper produced where no suspicion of fraud has
occurred.
The maxim "omni a Proe sumuntur rite esse acta"
is an expression in a short form, of a reasonable
probability, and of the propriety in point of law on
acting on such probability. The maxim expresses
an inference which may reasonably be drawn
when an intention to do some formal act is
established. In Blake v. Knight Sir Herbert Jenner
Fusty observed Is it absolutely necessary to have
positive affirmative testimony by the subscribed
witnesses that the Will was actually signed in their
presence, or actually acknowledged in their
presence? Is it absolutely necessary, under all
circumstances that the witnesses should concur in
stating that these acts took place? Or is it
absolutely necessary, where the witnesses will not
swear positively, that the Court should pronounce
against the validity of the will. I think these are not
absolute requisites to the validity of the will.
Consequently, "where the evidence of attesting
witnesses is vague or doubtful or even conflicting
the Court may take into consideration the
circumstances of the case and judge from them
collectively whether the requirements of the
Statute were complied with; in other words the
Court may, on consideration of other evidence or
of the whole circumstances of the case, come to
the conclusion that their recollection is at fault,
that their evidence is of a suspicious character, or
that they were willfully misleading the Court, and
accordingly disregard their testimony and
pronounce in favour of the will.”
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(Emphasis supplied)
This Court held that a greater degree of presumption arises in the case
of ‘holograph Wills’ The said finding was arrived at as the writing of the
Will and signature of the testator were admitted; there was also due and
proper attestation in accordance with the relevant statutory provisions. This
Court held that no suspicious circumstances appeared on the face of the
instrument and it was found to be moderate and rational.
Whether a Will is surrounded by suspicious circumstances or not is
essentially a question of fact.
We have noticed hereinbefore that there was a large number of
suspicious circumstances in the instant case. We have also pointed out that
suspicious circumstances appear on the face of the Will.
Inferences of suspicious circumstances must be drawn having regard
to the evidence of Ranjit Singh.
Even the statutory requirements for proof of the Will have not been
complied with. It is a trite law that execution of a Will must be held to have
been proved not only when the statutory requirements for proving the Will
are satisfied but the Will is also found to be ordinarily free from suspicious
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circumstances. When such evidences are brought on record, the Court may
take aid of the presumptive evidences also.
15. Reliance has also been placed by Mr. Priyadarshi on a decision of this
Court in Ramabai Padmakar Patil (Dead) through LRs. & Ors. v.
Rukminibai Vishnu Vekhande & Ors. [(2003) 8 SCC 537]. In that case
itself, this Court held :
“Before we advert to the submissions made by the
learned counsel for the parties, it will be useful to
briefly notice the legal position regarding
acceptance and proof of a Will. Section 63 of the
Indian Succession Act deals with execution of
unprivileged Wills. It lays down that the testator
shall sign or shall affix his mark to the Will or it
shall be signed by some other person in his
presence and by his direction. It further lays down
that the Will shall be attested by two or more
witnesses, each of whom has seen the testator
signing or affixing his mark to the Will or has seen
some other person sign the Will, in the presence
and on the direction of the testator and each of the
witnesses shall sign the Will in the presence of the
testator. Section 68 of the Evidence Act mandates
examination of one attesting witness in proof of a
Will, whether registered or not.”
It was furthermore held :
“In P.P.K. Gopalan Nambiar v. P.P.K.
Balakrishnan Nambiar it has been held that it is
the duty of the propounder of the Will to remove
16
all the suspected features, but there must be real,
germane and valid suspicious features and not
fantasy of the doubting mind.”
The said decision, therefore, is of no assistance to us.
16. The question which, thus, arises for consideration is as to whether
execution of the Will has been proved. In our opinion, it has not been.
The requirements for proving a Will have been laid down in a large
number of decisions. We would, however, refer to only a few of them.
In Janki Narayan Bhoir (supra), while dealing with the question
elaborately, this Court held :
“8. To say will has been duly executed the
requirement mentioned in Clauses (a), (b) and (c)
of Section 63 of the Succession Act are to be
complied with i.e., (a) the testator has to sign or
affix his mark to the will, or it has got to be signed
by some other person in his presence and by his
direction; (b) that the signature or mark of the
testator, or the signature of the person signing at
his direction, has to appear at a place form which
it could appear that by that mark or signature the
document is intended to have effect as a will; (c)
the most important point with which we are
presently concerned in this appeal, is that the will
has to be attested by two or more witnesses and
each of these witnesses must have seen the testator
sign or affix his mark to the Will, or must have
seen some other person sign the Will in the
presence and by the direction of the testator, or
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must have received from the testator a personal
acknowledgement of signature or mark, or of the
signature of such other person, and each of the
witnesses has to sign the Will in the presence of
the testator.
9. It is thus clear that one of the requirements of
due execution of will is its attestation by two or
more witnesses which is mandatory.
10. Section 68 of the Evidence Act speaks of as to
now a document required by law to be attested can
be proved. According to the said Section, a
document required by law to be attested shall not
be used as evidence until one attesting witness at
least has been called for the purpose of proving its
execution, if there be an attesting witness alive,
and subject to the process of the Court and capable
of giving an evidence. It flows from this Section
that if there be an attesting witness alive capable
of giving evidence and subject to the process of
the Court, has to be necessarily examined before
the document required by law to be attested can be
used in an evidence. On a combined reading of
Section 63 of the Succession Act with Section 68
of the Evidence Act, it appears that a person
propounding the will has got to prove that the will
was duly and validly executed. That cannot be
done by simply proving that the signature on the
will was that of the testator but must also prove
that attestations were also made properly as
required by Clause (c) of Section 63 of the
Succession Act. It is true that Section 68 of
Evidence Act does not say that both or all the
attesting witnesses must be examined. But at least
one attesting witness has to be called for proving
due execution of the Will as envisaged in Section
63. Although Section 63 of the Succession Act
requires that a will has to be attested at least by
two witnesses, Section 68 of the Evidence Act
provides that a document, which is required by
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law to be attested, shall not be used as evidence
until one attesting witness at least has been
examined for the purpose of proving its due
execution if such witness is alive and capable of
giving evidence and subject to the process of the
Court. In a way, Section 68 gives a concession to
those who want to prove and establish a will in a
Court of law by examining at least one attesting
witness even though will has to be attested at least
by two witnesses mandatorily under Section 63 of
the Succession Act. But what is significant and to
be noted is that that one attesting witness
examined should be in a position to prove the
execution of a will. to put in other words, if one
attesting witness can prove execution of the will in
terms of Clause (c) of Section 63, viz., attestation
by two attesting witnesses in the manner
contemplated therein, the examination of other
attesting witness can be dispensed with. The one
attesting witness examined, in his evidence has to
satisfy the attestation of a will by him and the
other attesting witness in order to prove there was
due execution of the will. If the attesting witness
examined besides his attestation does not, in his
evidence, satisfy the requirements of attention of
the will by other witness also it falls short of
attestation of will at least by two witnesses for the
simple reason that the execution of the will does
not merely mean the signing of it by the testator
but it means fulfilling and proof of all the
formalities required under Section 63 of the
Succession Act. Where one attesting witness
examined to prove the will under Section 68 of the
Evidence Act fails to prove the due execution of
the will then the other available attesting witness
has to be called to supplement his evidence to
make it complete in all respects. Where one
attesting witness is examined and he fails to prove
the attestation of the will by the other witness
19
there will be deficiency in meeting the mandatory
requirements of Section 68 of the Evidence Act.”
(Emphasis supplied)
Following the said decision, as also the other decisions in Benga
Behera (Supra), this Court held:
“21. It was also not necessary for the appellants to
confront him with his signature in the Xeroxed
copy of the Will, inasmuch as the same had not
appeared in the certified copy. Execution of a Will
must conform to the requirement of Section 63 of
the Succession Act, in terms whereof a Will must
be attested by two or more witnesses. Execution of
a Will, therefore, can only be proved in terms of
clause (c) of Section 63 when at least one of the
two witnesses proves the attestation. A Will is
required to be attested by two or more witnesses,
each of whom has seen the testator sign or affix
his mark to the Will. Section 68 of the Evidence
Act provides for the requirements for proof of
execution of the Will. In terms of said provision,
at least one attesting witness has to be examined to
prove execution of a Will.”
Yet again, recently in Anil Kak v. Kumari Sharada Raje & Ors.
[(2008) 6 SCALE 597], it was opined :
“40. Whereas execution of any other document
can be proved by proving the writings of the
document or the contents of it as also the
execution thereof, in the event there exists
suspicious circumstances the party seeking to
obtain probate and/ or letters of administration
20
with a copy of the Will annexed must also adduce
evidence to the satisfaction of the court before it
can be accepted as genuine.
41. As an order granting probate is a judgment in
rem, the court must also satisfy its conscience
before it passes an order.
It may be true that deprivation of a due share by
the natural heir by itself may not be held to be a
suspicious circumstance but it is one of the factors
which is taken into consideration by the courts
before granting probate of a Will.
Unlike other documents, even animus attestandi is
a necessary ingredient for proving the attestation.”
In Babu Singh & Ors. v. Ram Sahai @ Ram Singh [2008 (7) SCALE
743], this Court, inter alia, referring to Apoline D’Souza v. John D’Souza
[(2007) 7 SCC 225] and B. Venkatamuni v. C.J. Ayodhya Ram Singh &
Ors. [(2006) 13 SCC 249] held that the question as to whether due
attestation has been established or not will depend upon the fact situation in
each case.
17. For the reasons aforementioned, the impugned judgment cannot be
sustained. It is set aside accordingly. The appeal is allowed. However, in
the facts and circumstances of this case, there shall be no order as to costs.
..………………………J.
[S.B. Sinha]
21
..………………………J.
[Cyriac Joseph]
New Delhi;
December 19, 2008